Reflections On The Theory And Practice Of Restorative Justice

As a different way to understand and deal with crime from the state’s formal justice system, restorative justice now has much influence in the whole world since 1970th when it was firstly put forward. There are a lot of researches and practices on restorative justice in many countries including China and it is an active academic sphere at present. In this paper, I would like to critically reflect on the existing theory and practice of restorative justice on the basis of other studies, so my study will be both normative and empirical.Different from retributive justice, restorative justice holds that the crime is a violation of a particular person and the relationship between people, so the most important thing is to restore the harm suffered from the crime instead of punishing the offender, and the victim, offender and the community has the right to take part in the judicial process. The restorative justice absorbed the criticism to the formal judicial system from victim’s movement, feminist movement, postmodern theory and native people’s movement and their proposition. It criticized the simple picture that the replacement of community justice by state justice is a progress in the western history and holds that we should find an alternative to the formal justice from the community justice in the history. The proponent of restorative justice puts forward a republican theory of criminal justice on the basis of criticizing the theories which legitimize the power of the state to punish. This republican theory of criminal justice asserts the purpose of the criminal justice is to promote the dominion which requires the criminal justice activity should be reduced as least as necessary and emphasizes the factor of conscience established in the socialization process to prevent crimes. It also pays much attention to the role of“reintegrative shaming”employed by the community. However, the community justice and“reintegrative shaming”are both challenged by the reality.In the practical aspect, I critically analyze the major models of restorative justice according to the core values and principles of it and estimate their effects on the basis of existing data. As an indicator, the reduction in recidivism is not supported strongly by the data. But it is not an important indicator comparing with the victim and offender’s satisfaction with the process and results of restorative justice, so it shouldn’t overturn the positive effects of restorative justice. The analysis in the practice can give us a deeper understanding of restorative justice itself. When the restoration and the ability to restore are understood as items of different degree, State’s formal judicial system also can be restorative. The reflection on the circle sentencing reminds us that the community is not an entity which is ready to supply the needed resources. It may be full of prejudice, discrimination and imbalance of power, so it needs to be changed in the process of restorative justice.From the analyses of the theory and practice of restorative justice, I find that the“community”is the most important problem that the restorative justice proponents must face. I summarize the meanings of“community”in the restorative justice and the questions against it on the basis of the previous discussion. I respond to these questions in addition to the related opinions of the restorative justice proponents. Another problem related to the problem of“community”is social injustice, which goes beyond the sphere of community and connects to the broader structural process. I respond to this question from two aspects. In one aspect, the restorative justice provides an opportunity for the discussion of the social injustice related to the particular crime, which may promote the collective efforts in the community level to change the structural process partly. In the other aspect, as a public space, the restorative justice can combine its discussion on social injustice with the voice from other public spaces to form public opinion. If the public opinion is strong enough, it may influence the political decision of the state, and it may induce the institutional change in the state, which is the most important for the solution of the social injustice,because the problem of social injustice is caused by the structural process joined by many actors.